About the conference Much healthcare provision is accomplished through networks of providers such as physicians, hospitals, pharmacies, and dentists. Common contract terms between the party organizing the network and the set of providers include non-discrimination terms like MFNs and network participation requirements. The talk will discuss theories of competitive effect and consumer harm resulting from such provisions, and cover empirical evidence of their impact in the healthcare sector.

This event is accredited with 1.5 CPD hours by the Solicitors Regulation Authority, Bar Standard Board and IPReg.

ABSTRACT: Last month, 15 Democrats and 100 Republicans signed separate letters endorsing the proposed AT&T-T-Mobile merger and urging the Obama administration to drop the lawsuit brought by the Department of Justice's Antitrust Division to block it. The fact that nearly all of the signatories turned out to have received thousands of dollars in campaign contributions from AT&T recently was no surprise; at its most benign, there is nothing untoward about the private sector supporting politicians who are naturally inclined towards their point of view.

What was surprising was that the letters were directed not to Attorney General Eric Holder, but to President Obama himself. Lost in the debate over the propriety of members of Congress weighing in on a merger was a different, far more interesting question: Can the president of the United States order the attorney general to drop a lawsuit?

In short, yes. But that doesn't make it a good idea.

The attorney general is a member of the executive branch, appointed by the president, and tasked with assisting the president in his/her responsibility to execute the laws of the United States. There is, in fact, a long tradition of presidents directing their attorney generals to drop lawsuits, stretching back to the earliest days of the Republic. But the president has sworn to "faithfully" execute the laws of the United States. Electing to discontinue lawsuits for political purposes is not only wrong; it could also constitute grounds for impeachment, as it did with President Nixon.

Even if the president had a valid reason, such actions would undermine a basic pillar of American society. The country was founded on the idea of leveling the playing field for all persons, inherent in which is the notion that every person has the same chance to succeed as any other through sheer hard work and innovation. Not only are these fundamental American ideals; these are the philosophical underpinnings of antitrust law as well. Antitrust assumes a steady state for the American economy in which the most successful companies are the ones that provide the greatest value for consumers. Shielding select modern-day oligarchs from the antitrust laws places a well-greased palm on the scales of justice, creating market imbalances that harm the companies that play by the rules, while eroding basic principles of equality and upward mobility.

Bloomberg reports that Mario Monti, former head of DG Competition may have a tough task ahead... as the head of Italy. It makes some of his competition/antitrust battles seem like a walk in the park in comparison.

ABSTRACT: The government's challenge to the proposed acquisition of T-Mobile's U.S. wireless communications business by AT&T Mobility could leave a lasting imprint on the annals of antitrust. The epic cases between the government and "Ma Bell" in the 1980s and Microsoft in the 1990s not only moved antitrust policy onto the front pages but also stretched the limits of antitrust analysis. Both cases left their mark on antitrust law, if not on the commercial life of the nation. Might the DOJ's challenge to the AT&T/T-Mobile merger be a similarly significant antitrust case?

ABSTRACT: This article assesses the impact of retailer store brand products on manufacturer brand prices, profitability and consumer welfare in Boston's white fluid milk market. Estimates from a random coefficients logit demand model are used to specify and test a set of pricing games. Under the selected model, milk manufacturers are Stackelberg leaders to retailers, and store brand milks are procured by retailers at cost. The model is used to investigate counterfactual markets without retailer store brand milks. Counterfactual Simulation results indicate that store brands increase channel profits, retailer profits and consumer welfare, while having mixed effects on equilibrium retail prices.

About this talk Arbitration is a generally accepted method for the resolution of international business disputes and, for antitrust enforcement purposes, it represents another forum for the application of the competition rules. There is nowadays no doubt that EU competition law disputes can be submitted to arbitration (they are arbitrable), notwithstanding their public policy (ordre public) nature. After modernisation, exactly like courts, arbitrators have full competence to apply the whole of Article 101 TFEU, including its third paragraph. If the Commission were to issue in the future a notice or another informal instrument on arbitration, for clarity it could explicitly state the above proposition.

The neglect of arbitration in Regulation 1/2003 and in the accompanying ‘Modernisation Package’ is not in itself problematic; however, the European Commission should always remain open to cooperate with arbitration tribunals either in an informal or a more formal way. In the future, the Commission could consider publishing a Notice or some Guidelines on cooperation with arbitral tribunals. Such a Notice could provide for a more structured dialogue between arbitrators and the Commission, while increasing the transparency of the whole system of cooperation. It would also raise the EU competition law awareness of arbitrators and parties, but should strive not to encroach on the fundamental principles of flexibility, confidentiality and privity of the arbitral process.

Arbitration is not an organ of the Member States and therefore Articles 4(3) TEU and 16 Regulation 1/2003 are not directly binding on it. However, arbitral awards can be reviewed by EU-based State courts on public policy (ordre public) grounds, and this constitutes the ultimate and most efficient safeguard for the respectful application of the EU competition rules by arbitrators. To the extent an arbitral award may be reviewed and set aside on such grounds, the arbitrators should exercise caution when applying EU competition law and should even proceed to apply it of their own motion (ex officio). In the extreme case where an arbitral tribunal is an internal structure of a cartel and its function is to ensure compliance and resolve ‘disputes’ within the cartel, the arbitration clause itself would be illegal and the ‘arbitrators’ would be liable to fines under Article 101 TFEU.

ABSTRACT: In 2006, Russia amended its competition law and added the concepts of “collective dominance” and its abuse. This was seen as an attempt to address the common problem of “conscious parallelism” among firms in concentrated industries. Critics feared that the enforcement of this provision would become tantamount to government regulation of prices. In this paper we examine the enforcement experience to date, looking especially closely at sanctions imposed on firms in the oil industry. Some difficulties and complications experienced in enforcement are analyzed, and some alternative strategies for addressing anticompetitive behavior in concentrated industries discussed.

ABSTRACT: Emissions trading is a “cap and trade” regulation aimed at reducing the cost of meeting environmental targets. This paper studies how this regulation interacts with energy and competition policies. Two vertically related and imperfectly competitive markets are investigated: 1) the electricity market (output market); 2) the market for natural gas (input market). The effect of energy policy is simulated by assuming that the supporting scheme is able to improve the competitiveness of the low carbon technologies which are able, at the same time, to increase security of supply. The effect of the competition policy is accounted for by assuming that firms try to meet a profit target rather than to maximize profits, because of the regulatory pressure exerted by the competition and sector-specific authorities. By using the dominant firm model (in both markets) and the auction approach (in the output market), the paper highlig! hts a trade-off between these policies. Without regulatory pressure, the result is ambiguous. Together, environmental and energy policies can lead to an increase in market power and its effects, but this in turn not necessarily amplifies their performances. However the worst case, the absolute increase in pollution in the short-run, is excluded. With regulatory pressure, the environmental and energy policies may imply a decrease in market power and this in turn can lessen their performance. In addition, this time the absolute increase in pollution in the short-run is not only possible but even likely. However this unfavourable effect would happen only if the pollution price is sufficiently low, that is if the environmental policy is rather modest. From the policy implications point of view, the analysis suggests what follows. If the models used to estimate performances and costs of environmental and energy policies ignore the full role of imperfect competition (the impact o! n prices combined with the strategic use of power capacity), this may induce incorrect estimations of the cost of the public action or may lead to incorrect policy calibrations, depending on how the policy targets are set. Finally, although the results are based on a series of simple assumptions about the operation and the structure of energy markets, they seem to be enough robust. Nevertheless the paper suggests caution in extending to other market structures the outcome of the dominant firm model.

ABSTRACT: AT&T's proposed acquisition of T-Mobile presents an opportunity for judicial scrutiny of the newest iteration of the Department of Justice ("DOJ") and Federal Trade Commission's (FTC's) Horizontal Merger Guidelines ("2010 Guidelines"). The Agencies revised the 2010 Guidelines with an eye toward increasing transparency and predictability by conforming them to actual agency analysis. The 2010 Guidelines highlight the Agencies' adoption of a more economically sound analytical approach focusing directly upon the competitive effects of proposed mergers and de-emphasizing the importance of market definition and competitive inferences from market structure. But, oddly, the DOJ's complaint reverts to its pre-revision approach, emphasizing a remarkable focus upon market definition and structural analysis. The structure-heavy approach the DOJ adopts in its complaint runs afoul of the standards it espouses in the Guidelines, raising the risk of undermining their continued success as measured by judicial adoption.

In Search of Effectiveness - Current Trends and Challenges in Competition Law Enforcement

Thursday, 22nd March 2012

Call for Papers

Aims and Focus

Any system of law is only as effective as its enforcement mechanism. Enforcement has been described as the 'life blood' of a competition law, in the absence of which a competition regime is 'somewhat pointless'. The significance of competition law enforcement is steadily growing in the context of globalisation of markets and regulations.

The ongoing discourse on the enforcement of competition law calls for an assessment of various enforcement methods in light of their qualities, complementariness and potential overlap, in different (national, regional and international) contexts. At the same time regard has to be given to the issues of legitimacy, due process and human rights.

This Postgraduate Workshop aims to review and assess competition law enforcement methods and techniques; to study the current challenges of competition law enforcement; and to explore various answers and solutions to these challenges.

Papers are invited from PhD students at different stages of their research on any of the following themes:

Private enforcement through actions for damages (theme 1)

Public enforcement: legitimacy, due process and human rights (theme 2),

Practical aspects of transnational enforcement of competition law (theme 3).

Other topics which fall within the broad theme of the enforcement of competition law and tie in with received submissions may be also considered. Papers may draw lessons from particular competition law regimes or adopt a comparative approach.

This Postgraduate Workshop offers participants an opportunity to present and discuss their research in a friendly and critically engaged atmosphere. Thanks to its structure (see below), the involvement of expert discussants (junior academics) and senior faculty (chairing sessions), presenters are expected to receive detailed feedback. This intensive academic exercise is intended to ultimately lead to publication in a special issue of a leading peer-reviewed journal in the field. While organisers do not guarantee publication, the Competition Law Review has agreed to consider publication, subject to the usual peer review, of the papers submitted for the Workshop and revised in the light of the discussions at the event.

Structure

The Workshop will be composed of three to four panels around the suggested themes. As the number of participants is limited, the organizers will select those proposals that offer the best fit with the indicated themes and that seem most promising.

Each panel will have an expert discussant, an established junior academic, who will comment on each paper presented at a particular panel. Each participant will be obliged to submit the draft paper four weeks in advance of the Workshop. The papers will be then forwarded to the respective discussants and to all the participants. Each participant is expected to have read the other participants’ papers and to participate actively throughout the Workshop.

During the Workshop each participant will be offered a few minutes to briefly reintroduce the paper. This will be followed by the discussant feedback and comments, and by the discussion on the forum. Each participant will be allocated a total of 30 minutes minimum.

Best Paper Award

The UCD Dean of Law will consider an award of the prize for the best paper submitted for the Workshop. All papers of non-UCD participants will be considered for the Award, which will be presented at the end of the Workshop. The Award prize is a €100 voucher valid for the leading international online bookshop.

Deadlines

Abstracts, of approximately 300 words and indicating the selected theme, should be sent by e-mail to lawPhDworkshop@ucd.ie The closing date for receipt of abstracts is 7th December 2011. Successful applicants will be informed by 4th January 2012. The submission of draft papers (up to 10,000 words) is required by 23rd February 2012.

Costs

Participants are expected to cover their own travel costs. Thanks to the kind support of our sponsors we will organize and cover the cost of accommodation for participants from abroad. Lunch and refreshments during the Workshop as well as a dinner following the event will be provided.

Participation Stipend

We are happy to offer one scholarship, to the value of €200, for a participant unable to cover airfare costs due to financial difficulties (please, contact us for details if interested).

Please note

(1) Printouts: The Postgraduate Workshop is organised in an environmentally-conscious way and no printouts will be handed out to the Workshop participants. We encourage reliance on the digital copies.

(2) Dress code: Smart academic (please, do not suit up for this event).

ABSTRACT: The European Commission has launched a number of antitrust investigations against the major energy incumbents in the aftermath of the energy sector inquiry. Most of them have already been settled under Article 9 of the EC Regulation 1/2003 and the undertakings offered far-reaching, sometimes structural, commitments. This article studies the 2008 investigation into price manipulation in the German electricity wholesale market. In spite of no convincing evidence and flaws in the assessment, the Commission was able to negotiate from E.ON substantial capacity divestments. The Commission is straightforward about using antitrust rules to open up energy markets. Sector inquiries, commitment procedure and structural remedies allow for a quick intervention, flexible problem-solving and bring about decisive changes in the energy market setting. However, harnessing antitrust for the purpose of energy liberalization policy has an adverse impact on competition enforcement itself. First, it leads to a number of ‘weak’ cases, based on far-fetched arguments. Second, it results in remedies which are not tailored to the abuse at issue, but are in line with a wider objective of energy market liberalization, and as an outcome of negotiations, further swayed by the firm’s own interest in the ultimate shape of the commitment package.

ABSTRACT: This paper presents a model of competition between an incumbent and an entrant firm in telecommunications. The entrant has the option to enter the market with or without having preliminary invested in its own infrastructure; in case of facility based entry, the entrant has also the option to invest in the provision of enhanced services. In case of resale based entry the entrant needs access to the incumbent network. Unlike the rival, the incumbent has always the option to upgrade the existing network to provide advanced services. We study the impact of access regulation on the type of entry and on firms' investments. Without regulation, we find that the incumbent sets the access charge to prevent resale based entry and this overstimulates rival's investment that may turn out to be socially inefficient. Access regulation may discourage welfare enhancing investments, thus also inducing a socially inefficient outcome. We ex! tend the model to account for negotiated interconnection in case of facilities based entry.

ABSTRACT: This paper investigates consumer switching costs in the context of health insurance markets, where adverse selection is a potential concern. Though previous work has studied these phenomena in isolation, they interact in a way that directly impacts market outcomes and consumer welfare. Our identification strategy leverages a unique natural experiment that occurred at a large firm where we also observe individual-level panel data on health insurance choices and medical claims. We present descriptive results to show that (i) switching costs are large and (ii) adverse selection is present. To formalize this analysis we develop and estimate a choice model that jointly quantifies switching costs, risk preferences, and ex ante health risk. We use these estimates to study the welfare impact of an information provision policy that nudges consumers toward better decisions by reducing switching costs. This policy increases welfare! in a naive setting where insurance plan prices are held fixed. However, when insurance prices change endogenously to reflect updated enrollee risk pools, the same policy substantially exacerbates adverse selection and reduces consumer welfare, doubling the existing welfare loss from adverse selection.

ABSTRACT: In the context of the naked exclusion model of Rasmusen, Ramseyer and Wiley (1991) and Segal and Whinston (2000b), we examine whether sequential contracting is more conducive to exclusion in the lab, and whether it leads to lower exclusion costs for the incumbent, than simultaneous contracting. We find that an incumbent who proposes exclusive contracts to buyers sequentially, is better able to deter entry than an incumbent who proposes contracts simultaneously. In contrast to theory, this comes at a substantial cost for the incumbent.

ABSTRACT: On Aug 31, 2011, the Department of Justice, joined later by seven state attorneys general filed suit to block AT&T's pending merger with T-Mobile USA. To be sure, the Department of Justice has never expressed any regret over the Microsoft case or any other recent antitrust action. But the decision to sue has plenty of self-interested fans, including AT&T competitors Sprint and Cellular South as well as advocacy groups in Washington who believe every merger will end the consumer internet as they know it. Though different provisions of antitrust law apply to the two cases, both lawsuits repeat the same fatal flaws: Both rely on a definition of the "relevant market" that is narrow and static. Both cling to old models of economic analysis better suited for mature industrial age markets than to rapidly-evolving information markets, where new categories of products and services rise and fall in the time it takes to bring a case to appeal. Both cases pursue sweeping remedies with little regard for their structural impact, either on the defendant or on fast-growing consumer markets.

ABSTRACT: We revisit the study of the dynamics of a duopoly game a la Bertrand with horizontal product differentiation and bounded rational firms analysed by Zhang et al. (2009), (Zhang, J., Da, Q., Wang, Y., 2009. The dynamics of Bertrand model with bounded rationality. Chaos, Solitons and Fractals 39, 2048–2055), by introducing sound microeconomic foundations. We study how an increase in the relative degree of product differentiation affects the stability of the unique positive Bertrand-Nash equilibrium, in the case of both linear and non-linear costs. We show that an increase in either the degree of substitutability or complementarity between goods of different variety may destabilise the equilibrium of the two-dimensional system through a period-doubling bifurcation. Moreover, by using numerical simulations (i.e., phase portraits, sensitive dependence on initial conditions and Lyapunov exponents), we find that a “quasi-periodic” route to chaos and a large gamma of strange attractors for the cases of both substitutability and complementarity can occur.

ABSTRACT: We analyse the stability issue in a Cournot duopoly with heterogeneous players. We show that labour market institutions matter for the stability of the unique interior Cournot-Nash equilibrium. Interestingly, the role played by the existence of firm-specific unions on stability, when the degree of unionism is asymmetric between the two firms, is at all different depending on whether the unionised firm has bounded rational or naive expectations. Indeed, a shift in the union’s preference from employment towards wages acts as an economic (de)stabiliser when workers are paid with the (competitive) unionised wage by the bounded rational firm and with the (unionised) competitive wage by the naive firm.

ABSTRACT: Private enforcement of antitrust damages critically hinges upon proof that an antitrust violation caused damage. Existing research narrowly focuses on the quantification of damages, but proving causation goes far beyond quantification. Strict legal requirements must be observed. To address causation adequately, an integrated legal and economic approach is necessary. Traditional tort law examines for each transaction whether an antitrust violation caused damages with near certainty. This quasi-deterministic approach offers a seemingly unequivocal solution for assessing causation. However, complicated cases such as private antitrust damages cannot be decided by this methodological approach. In contrast, economic methods for proving causation use statistical tools. Such an analysis goes beyond individual transactions and provides insights on a coherent group of similar instances. Newer concepts of stochastic causation in tort law can mend the conflict to obtain a consistent assessment of causation. Law and economics pose the same questions about causation, but they differ in their methodological approaches. To provide common ground, we develop a novel analytical framework, drawing upon research in industrial organization. This framework provides a thorough explanation of market structures' underlying antitrust violations. Thereby, statistical analyses of damages and qualitative legal analyses of causation can be put on firm, internally consistent footing.

ABSTRACT: We study the implications for pricing strategies and product offerings of consumers’ temptation when the differentiation of the product is horizontal. With horizontal differentiation, the temptation state is represented by a change in the consumers’ ideal product on the Hotelling line, so that consumers have two (possibly distinct) ideal products: one when committed and another when tempted. The firm faces the following trade-off: for the consumer who diverge the most between the ideal product with temptation and commitment, if the firm positions a product close to the consumer’s temptation ideal product, it increases the consumer’s surplus when tempted but decreases surplus with commitment, which lowers the consumer’s incentive to participate. This paper shows that, because of this trade-off, the firm may exclude products that are too close to the temptation preferences in the optimal menu. Moreover, it is sho! wn that product diversity and firm’s profits decrease with the probability of temptation and with the consumers’ awareness of their dynamic inconsistency.